EVA J. CULBERSON, PETITIONER V. VETERANS ADMINISTRATION
No. 88-963
In the Supreme Court of the United States
October Term, 1988
On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
Brief for the Veterans Administration in Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-10a) is
unreported. The opinion of the district court (Pet. App. 12a-13a) is
unreported.
JURISDICTION
The judgment of the court of appeals was entered on June 27, 1988.
A petition for rehearing was denied on August 15, 1988. The petition
for a writ of certiorari was filed on November 14, 1988 (a Monday).
The jurisdiction of this Court is invoked under 28 U.S.C. 1254.
QUESTION PRESENTED
Whether the evidence supported the district court's finding that
the Veterans Administration did not discriminate against petitioner on
the basis of race or sex.
STATEMENT
1. Petitioner is a black woman who graduated from law school in
May of 1979. While waiting for the results of the bar examination,
she applied for a job as an attorney with the Detroit District
Counsel's Office of the Veterans Administration. She stated on her
application that she would accept a salary of $16,000. Pet. App. 2a.
The Assistant District Counsel in Detroit interviewed petitioner.
The Detroit office then recommended to the General Counsel's Office in
Washington, D.C. that she be hired. The General Counsel's Office
makes all decisions regarding the hiring of VA attorneys. In the
past, the Detroit office had hired only attorneys who had passed the
bar (Pet. App. 2a). The Detroit office, however, wanted to hire
petitioner as a law clerk at General Schedule (GS) level 9; they
planned to convert her job status to an attorney position once she
passed the bar. In 1979, when petitioner was hired, VA District
Counsel offices were restricted to hiring entry level attorneys at the
GS-9 level (id. at 2a-5a).
The VA hired petitioner at the GS-9 level, which paid more than
$17,000. Two weeks later, petitioner learned that she had passed the
bar examination. The VA converted her job position from "law clerk"
to "attorney", but it declined petitioner's request for a grade
increase to the GS-11 level (Pet. App. 6a). According to standard VA
policy, an employee hired at the GS-9 level must wait at least one
year before becoming eligible for promotion to GS-11 (ibid.). After
petitioner filed a charge of discrimination, the Detroit District
Counsel requested an exception to that rule to allow petitioner to be
promoted immediately to the GS-11 grade level. (id. at 6a-7a). The
General Counsel's Office denied that request. Accordingly, petitioner
worked one year at grade GS-9 before she was promoted to GS-11. She
is now employed by the Detroit office at the GS-13 level (ibid.).
2. Petitioner filed this suit claiming race and sex discrimination
in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e et seq., and the Equal Pay Act, 29 U.S.C. 206. After a two-day
trial, the district court found in favor of the VA. The district
court rules that petitioner had failed to prove her claims of
discrimination (Pet. App. 16a-31a). The court found that the VA had
legitimate reasons for hiring petitioner at the GS-9 level (id. at
17a-21a).
The court of appeals affirmed on the basis of the findings and
conclusions of the district court. Pet. App. 10a.
ARGUMENT
The decision of the court of appeals is correct and it does not
conflict with the decisions of any other court of appeals. Indeed,
petitioner argues only that the court of appeals erred in holding that
the district court's findings were supported by the evidence. This
Court's review of that fact-specific claim is not warranted.
1. Petitioner attempted to prove her claim of discrimination by
comparing herself to two other VA attorneys -- Maureen Faes and
Richard Cunningham. The Detroit office employed Faes and Cunningham
at a higher grade than petitioner (Pet. App. 7a-8a). The district
court found that Ms. Faes was hired in 1977 at the GS-11 level. At
that time, she had been a member of the bar for two years. She also
had previous experience as a teacher, which the VA considered to be
useful for instructing other personnel at the Detroit office (id. at
22a-23a). In 1977, moreover, the VA hired new attorneys at the GS-11
level. When petitioner was hired in 1979, by contrast, the standard
entry level was GS-9 (id. at 23a). Thus, the district court had
substantial evidence to support its finding that the VA legitimately
treated petitioner and Ms. Faes differently.
Mr. Cunningham was transferred to the Detroit District Counsel's
Office at the same time that petitioner was hired. Unlike petitioner,
however, he was a licensed attorney when he transferred. He also had
worked for the VA for ten years and had been Chief of Field Services
in another office. Cunningham was a GS-12 in his prior position and
the VA allowed him to continue at that grade as an attorney (Pet. App.
24a). /*/ Accordingly, as the district found, the VA treated
Cunningham differently from petitioner because of his prior government
experience (ibid.).
There is other evidence to support the district court's findings.
In January and March of 1980, shortly after petitioner began working,
the Detroit office hired two white men as attorneys. As was the case
with petitioner, they were hired at the GS-9 level and promoted to the
GS-11 level after one year (Pet. App. 8a). In sum, the district court
had a solid basis for finding that petitioner "failed to present any
evidence that she was treated differently because she is black in
either terms of hiring or promotion" (id. at 25a).
2. The district court also was justified in rejecting petitioner's
claim under the Equal Pay Act -- i.e., that she "was paid less than
white male GS-13 attorneys for performing the same work at that level"
(Pet. 4). The Equal Pay Act prohibits an employer from paying wages
to employees of one sex at a rate less than the rate being paid to
employees of the opposite sex for equal work. See 29 U.S.C.
206(d)(1); Corning Glass Works v. Brennan, 417 U.S. 188, 195 (1974).
Different wages may be paid if such difference is due to seniority or
to any factor other than sex. 29 U.S.C. 206(d)(1).
Here, the four men at the GS-11 level with whom petitioner compared
herself had been with the VA for several years at the time petitioner
was hired (Tr. 23). Mr. Cunningham, who was a GS-12, had also been
with the VA for many years. Petitioner was treated exactly the same
as two inexperienced men who were hired at the GS-9 level and were
required to remain in that grade for one year (Pet. App. 21a-22a,
25a). Thus, the district court correctly found that petitioner failed
to prove a violation of the Equal Pay Act.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
WILLIAM C. BRYSON
Acting Solicitor General
JOHN R. BOLTON
Assistant Attorney General
SANDRA WIEN SIMON
Attorney
APRIL 1989
/*/ In determining the rate of pay of individuals under the GS
system, a distinction is made between new appointments, such as
petitioner, and reassignments, such as Mr. Cunningham. 5 C.F.R.
531.203, 531.202(j). Because Mr. Cunningham was being reassigned
within the agency, he was eligible to be paid at his highest previous
rate, which was GS-12.5 C.F.R. 531.203(c).